Gill v Wollondilly Shire Council

[2021] NSWLEC 1060

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gill v Wollondilly Shire Council [2021] NSWLEC 1060

Hearing dates:

Hearing 3 and 4 December 2020, Conciliation on 27 January 2021

Date of orders:

10 February 2021

Decision date:

10 February 2021

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Court orders that Development Control Order dated 10 October 2019 be substituted with Order 11 of Part 1 of the Table to Schedule 5 of the Environmental Planning and Assessment Act 1979 pursuant to ss 9.34 and 9.35 of the Environmental Planning and Assessment Act 1979 in respect of the land being Lot 959 in Deposited Plan 1101113 known as 22 Robertson Way, Camden Park being Annexure A hereto.

(3) The exhibits, other than Exhibits 1, A and B are to be returned.

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation – agreement – substituted order

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Justin Keith Gill (Applicant)
Wollondilly Shire Council (Respondent)

Representation:

Counsel:
F Berglund (Applicant) (3, 4 December 2020)
A Singh (Applicant) (Solicitor) (27 January 2021)
C Zoppo (Solicitor) (Respondent)

Solicitors:
Adams & Partners Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/350026

Publication restriction:

Nil

Judgment

1. This is an appeal pursuant to s 8.18 Environmental Planning and Assessment Act 1979 (EP&A Act) against a Development Control Order (order) dated 10 October 2019 being Orders 3 and 10 in Part 1 of the Table to Schedule 5 of the EP&A Act pursuant to ss 9.34 and 9.35 of the EP&A Act in respect of the land being Lot 959 in Deposited Plan 1101113 known as 22 Robertson Way, Camden Park (land).

2. The order required the Applicant to demolish certain work said to have been unlawfully carried out and restore the land to its prior condition.

3. The matter commenced as a hearing before me on 3 December 2020 and the evidence was completed on 4 December 2020. At the conclusion of the evidence the parties’ experts and then the parties reached a common understanding as to an appropriate substituted order in place of the order the subject of the appeal.

4. I made directions for the parties to file written submissions so as to give the parties an opportunity to formalise their agreed position and enter an agreement pursuant to s34 Land and Environment Court Act 1979. If the agreement was made then there would be no need for the submissions to be made.

5. In the event such an agreement was filed by the parties on 18 December 2020.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

7. The parties’ agreement involves the Court exercising the function under s 8.18(4)(c) of the EP&A Act to substitute for the order any other order that the Council could have given. I am satisfied by reference to its terms that the proposed order is one which the Council could have given.

8. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

9. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

10. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act1979, the Court orders that Development Control Order dated 10 October 2019 be substituted with Order 11 of Part 1 of the Table to Schedule 5 of the Environmental Planning and Assessment Act1979 pursuant to ss 9.34 and 9.35 of the Environmental Planning and Assessment Act1979 in respect of the land being Lot 959 in Deposited Plan 1101113 known as 22 Robertson Way, Camden Park being Annexure A hereto.

3. The exhibits, other than Exhibits 1, A and B are to be returned.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (1720525, pdf)

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Decision last updated: 10 February 2021